Employment Law Case Update - February 2015

Burnetts' employment law solicitors look at the latest case law updates.

Criticising Management is Protected as Freedom of Expression

Although last month we were able to highlight the positive case of the courts upholding the dismissal of an employee who had made inappropriate comments on a “personal” twitter account, the European Court of Human Rights (ECHR) recently decided in the case of Rubins v Latvia that the dismissal of a university professor for criticising the management of the Riga Stradina University (his employer at the relevant time), after the decision had been taken to merge his department with another, was an unlawful restriction on his freedom of expression.

Mr Rubins’ emails had been critical of the leadership of the University and their “mismanagement” of finances. After he was notified that he was at risk of redundancy, Mr Rubins had emailed senior people within the University highlighting what he saw as personal and professional failings in his colleagues and making allegations of plagiarism against some of them. He also threatened the University with legal action and said that he would “go to the press” if they couldn’t reach agreement on the way forward. On the same day that the University rejected Mr Rubins’ proposals the Latvian national news agency published Mr Rubins' views about the alleged shortcomings in the management of the University.

Mr Rubins was then dismissed on the grounds of misconduct. It was decided that Mr Rubins’ emails had made inappropriate demands and that the “blackmail” was a breach of trust and confidence between the parties.

Mr Rubins issued proceedings against the University for the Latvian equivalent of unfair dismissal. The Latvian courts rejected Mr Rubins' claim, finding that his dismissal had been justified under domestic employment law.

Mr Rubins applied to the ECHR claiming a breach of his right to freedom of expression. He argued that he had been punished for expressing a legitimate opinion about problems at the University.

The ECHR confirmed that Article 10 of the European Convention on Human Rights (which grants everyone to the right to freedom of expression, subject to certain restrictions) does apply to the employment relationship. However, it noted that the right to freedom of expression needed to be balanced with the duties of loyalty and discretion that the ECHR felt were owed by employees to their employer

In Mr Rubins’ case, the ECHR agreed that Mr Rubins' dismissal had been as a direct result of the emails which he had sent. The majority of the Judges sitting in this case felt that a dismissal because of the comments that Mr Rubins had made in those emails was an interference with his right to freedom of expression and that there hadn’t been sufficient evidence that the interference with that right to freedom of expression had been justified.

The ECHR felt that, as a state-financed education establishment, the issues about financial management at the University that Mr Rubins was trying to raise were of public interest. The ECHR also seems to have been particularly interested in the fact that there did not seem to have been any suggestion that the information which had been disclosed by Mr Rubins had been untrue. In those circumstances, the ECHR felt that the interference with Mr Rubins right to freedom of expression was not proportionate to the aim pursued by the decision to dismiss him.

In this country, employees who had acted in the same way as Mr Rubins might be protected as whistleblowers and so should not have to look at the ECHR or the Human Rights Act but the case is still of interest because the ECHR seemed to imply that an employee should be able to upset his or her employer by saying things that are unpalatable without fear of dismissal. The fact that Mr Rubins had strayed almost into blackmail did not appear to be relevant. The ECHR was more concerned with the nature of information that he was disclosing and the fact that the truthfulness of the information had not been challenged.

It will be interesting to see if any employees or workers who are not protected under the whistleblowing legislation try to argue that the breach of their freedom of expression affects the fairness of the decisions made by their employer.

Importantly though the case highlights, once again, the dangers of dismissals following comments that an employee might have made about staff or an organisation whether in the media, on a social media platform or otherwise which the Employer considers cause harm to its reputation or business. Employers considering a dismissal of that nature are encouraged to seek legal advice.

Singling staff out because of their weight will be costly

Last month we highlighted confirmation by the European Court of Justice that obesity could be a disability. That Judgment has already been followed by a UK employment tribunal in the case of Bickerstaff v Butcher.

Mr Bickerstaff worked at Randox Laboratories in Northern Ireland. He claimed to have been picked on by colleagues, in particular Mr Butcher, because of his weight. Mr Butcher had made comments along the lines that Mr Bickerstaff was so fat “he could hardly walk” and that “he would hardly feel a knife being stuck into him”.

Mr Butcher was summarily dismissed after Mr Bickerstaff raised a grievance about the way that he had been treated by Mr Butcher and others. However, Mr Bickerstaff still brought claims for disability discrimination against Randox Laboratories and a number of his work colleagues including Mr Butcher. The claims against the company and all of the other employees were settled. Only Mr Bickerstaff’s claim against Mr Butcher proceeded to a tribunal hearing.

The tribunal accepted at that hearing that Mr Bickerstaff’s gout, which was linked to his diet and weight problems, and had led to knee, joint and back pains, was a disability. The tribunal then went on to consider whether or not Mr Bickerstaff’s obesity was, by itself, also sufficient to make him disabled. It noted that Mr Bickerstaff’s substantial weight caused sleep apnoea, frequent tiredness, loss of concentration, "shortness of breath on minimal exertion" and an occasional need to use crutches to help with mobility. The medical evidence presented seemed to suggest that the weight issues were “self inflicted” and that they would end after around six months if Mr Bickerstaff committed to a weight loss programme. However, there was no evidence to conclude that this was likely to be the case.

The tribunal applied the rule from the Kaltoft case (that the obesity of a worker can constitute a disability if it hinders full and effective participation at work) and unanimously concluded that Mr Bickerstaff’s obesity was a disability and that he had been harassed because of that disability i.e. because of his weight.

The fact that the condition was self-inflicted and could be significantly improved didn’t appear to be important. Instead, the tribunal focused on the impact of the condition at the time that the comments were being made.

This judgment reinforces how careful employers need to be to clamp down on inappropriate comments at work. Although the employer in this case had “done the right thing” by sacking the main protagonist, it was still involved in the litigation and might have been better served by ensuring that policies and procedures were in place to prevent the harassment in the first place.

Any employers struggling with how to deal with inappropriate language or behaviour in the work place should contact Natalie Ruane at Burnetts on 01228 55 22 22 or by email (nr@burnetts.co.uk).